McKisick v. Forrest City Arkansas School District No. 7 Appellants' Brief

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UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

NO. 20,143
Civil

ERIC McKI.SICK, et al., Appellants.
vs.

THE FORREST CITY, ARKANSAS, SCHOOL DISTRICT NO. 7, et al.,Appellees.

Appeal from the United States District Court, 
Eastern District of Arkansas, Helena Division

A P P E L  L A N T S'______B R I E F

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN CHACHKIN
Suite 2030
10 Columbus CircleNew York, New York 10019
JOHN W. WALKER 
PHILIP E. KAPLAN 
WALKER, ROTENBERRY, KAPLAN, 

LAVEY & HOLLINGSWORTH 1820 West Thirteenth Street 
Little Rock, Arkansas 12202
ATTORNEYS FOR APPELLANTS

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t

I N D E X

PAGE
Authorities Cite$................  ............... i
Issue Presented..................... 1
Relief Sought....................... 1
Statement of Case................... 2
Statement of Point to be Argued. . . . . . . . . .  2
ARGUMENT

The District Court Erred In Granting
The Forrest City School District Additional
Time in Which to Desegregate and Unitize
Their Schools . . . . . . . . . . . . . . . .  3

CONCLUSION ........................................... 6

AUTHORITIES CITED

Alexander v. Holmes County Board ofEducation, 396 U.S. 19, 24 L.Ed 2d 41 (1969) . . .  2,3,4,5,6
Carter v. West Feliciana Parish School Board,

(No. 944)______U.S.______(1970), 24 L.Ed
2d 477 ..................................... 2,5

Green v. County School Board of New Kent
County, Va., 391 U.S. 430 (1968).............. .2,4

Singleton v. Jackson Municipal Separate School
District (No. 972), _____ U.S.______(1970),
24 L.Ed 2d 477 .............................. .. .2,5



UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

NO. 20,143 Civil

ERIC MtKlSICK, et al., Appellants,
V S .

THE FORREST CITY, ARKANSAS, SCHOOL 
DISTRICT NO. 7, et al.,

Appellees.

Appeal from the United States District Court 
Eastern District of Arkansas, Helena Division

APPELLANTS' BRIEF

ISSUE PRESENTED

Does the District Court have the power to grant or 
permit delay in the implementation of an effective school 
desegregation plan?

RELIEF SOUGHT

Appellants seek immediate vindication of their 
constitutional rights by a decree from this Court requiring 
(a) appellees to begin immediately to operate a unitary school 
system within which no person is to be effectively excluded 
because of race or color; (b) appellees to implement their 
existing and acceptable secondary and primary school deseg­
regation plan formulated with the assistance of the Department 
of Health, Education and Welfare which promises to eliminate 
immediately and permanently the remaining vestiges of 
segregation within the Forrest City school system."^

1/AppeHants Motion for Summary Reversal pointed out, and we 
repeat here, that although portions of the HEW-Forrest City 
elementary zoning plan may fall short of completely disestab­
lishing a dual school system, implementation of that plan does 
promise significant hope in achieving that end, and any failings 
of the plan can be brought to the attention of the Court at a 
later time. Further the plan has the advantage of being capable of immediate implementation.



STATEMENT OF CASE

On February 3, 1970, this school desegregation 
appeal was docketed and a motion was filed by appellants 
seeking summary reversal of an order of the Honorable 
Oren E. Harris, United States District Judge, Eastern 
District of Arkansas, entered on January 15, 1970. This Court 
denied appellants' Motion for Summary Reversal but ordered 
the case placed for hearing on the April docket.

Appellants submitted in their Motion for Summary 
Reversal a rather complete statement of the case which is 
hereby adopted by reference and made a part of this brief.

STATEMENT OF POINT TO BE ARGUED
The District Court Erred in Granting the Forrest 

City School District Additional Time in Which to Desegregate 
and Unitize Their Schools.

Alexander v. Holmes County Board of Education,
396 U.S. 19, 24 L.Ed.2d 41 (1969);

Carter v. West Feliciana Parish School Board
(No. 944)______ U.S.______(1970), 24 L.Ed 2d 477;

Green v. County School Board of New Kent County, Va., 
391 U.S. 430 (1968)

Singleton v. Jackson Municipal Separate School
District (No. 972),____U.S.____(1970),
24 L.Ed 2d 477.

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ARGUMENT

THE DISTRICT COURT ERRED IN GRANTING 
THE FORREST CITY SCHOOL DISTRICT 

ADDITIONAL TIME IN WHICH TO 
DESEGREGATE AND UNITIZE THEIR SCHOOLS.

The District Court initially found that Forrest City 
". . . has failed to take necessary steps to effectively 
implement a desegregated unitary school system," (P. 2, District 
Court ORDER filed January 15, 1970). The Court also found 
that the reasons set forth by the school district in support 
of additional delay "shall no longer serve as deterrents to 
immediate compliance with the constitutional standard." As 
a result of these findings, the Court required Forrest City 
to present a desegregation plan which eliminated the dual 
busing system and the freedom of choice pupil assignment 
approach no later than the beginning of the second semester 
of the present school year. Faculty desegregation, so as 
to eliminate all vestiges of segregation, begun immediately 
and completed "no later than the commencement of the 1970-71 
school year." Forrest City has submitted a plan for 
operation of its schools which makes only the most general 
promises to attempt to accomplish unification, and steps for 
this year are limited to a few teacher transfers. In a 
district where 65 percent of the pupils are transported to 
school each day, the plan does not call for any pupil 
composition change for the rest of this year.

We contend that the District Court erred in applying 
the doctrine of Alexander v. Holmes County Board of Education, 
396 U.S. 19, 24 L.Ed. 2d 41 (1969), in refusing or failing 
to order immediate implementation of desegregation at all 
levels and in granting any delay. First, the Court found

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the existence of unlawful segregation and the need for remedy. 
Second, the Court specifically found that there were no valid 
legal obstacles to immediate desegregation. Third, there were 
valid desegregation plans developed by or with the approval of 
both Forrest City and HEW which could have been implemented 
in September, 1969, which would have equitably and permanently 
eliminated the vestiges of segregation in Setiss^-City. Green v . 
County School Board of New Kent County, Va., 391 U.S. 430 
(1968). Delay granted by the District Court under these 
circumstances is beyond cavil clearly contrary to the law for 
"the obligation of every school district is to terminate dual 
school systems at once and to operate now and hereafter only 
unitary schools." Alexander v. Holmes, supra.

In Alexander, the Fifth Circuit had permitted delay 
in pupil desegregation until 1970-71. In reversing and 
requiring the thirty-three school districts involved to immediately
unitize, the Supreme Court set out the new role of the appellate

?/courts. Courts of appeals were directed by the Supreme Court 
to "direct the schools . . .  to accept all or part of the . . .  
recommendations of the Department of Health, Education and

In apparent recognition that often the local district 
courts are slow to afford full relief to Negro plaintiffs, the 
Supreme Court required that appellate courts retain jurisdiction 
of these cases to insure that its orders were being complied 
with. District Courts were in effect stripped, of power to 
amend or modify appellate court rulings until or unless such 
amendments or modifications were made and/or approved by the 
appellate courts themselves. We submit that the facts of this 
and other recent school desegregation cases coming before 
this Court from the Eastern District of Arkansas, Pine Bluff 
and Helena Divisions, demonstrate the wisdom of the Supreme 
Court's ruling to shift from the district courts to the Courts 
of Appeals more of the power and responsibility to achieve 
desegregation.

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Welfare, with any modifications which [the Court of Appeals] 
deems proper insofar as those recommendations insure a totally 
unitary school system for all eligible pupils without regard 
to race or color. (24 L.Ed.2d at p. 21).

Forrest City is in no different legal posture from 
the numerous school districts involved in Alexander, for the 
Forrest City School Board previously represented to the Department 
of HEW that the schools would be desegregated by September,
1969, pursuant to a constitutionally acceptable plan. When 
the majority of the community resisted the plan, it was dropped 
and freedom of choice retained.

Nor are the facts in Forrest City different from 
those in Carter v. West Feliciana Parish School Board (No. 944)
___ U.S.____(1970), 24 L.Ed 2d 477); and Singleton v. Jackson
Municipal Separete School District (No. 972),____U.S.____(1970),
24 L.Ed 2d 477.

In those cases, the Fifth Circuit had reversed district 
court orders deferring desegregation beyond the 1969-70 school 
year. The Fifth Circuit had ordered complete faculty desegre­
gation until September, 1970. The Supreme Court reversed, 
stating that, "Insofar as the Court of Appeals authorized 
deferral of student desegregation beyond February 1, 1970, 
that court misconstrued our holding in Alexander v. Holmes."
24 L.Ed. 2d at p. 479.

The law is clear; public schools must immediately 
be unitized in all respects. The Supreme Court has effectively 
foreclosed all arguments for additional delay. But, even if 
the Supreme Court had not been so positive, the District Court 
gave no reasons to support delay of elementary pupil desegre­
gation or secondary pupil d&s-egregatjfcon. •'

Clearly, Alexander stands

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for the proposition— at least— that after the District Court 
has ordered a desegregation plan into implementation it should 
not be dd-Iayed -for :m y  reason.

Finally, the District Court did not find that the HEW 
plans would not work. Thus, for no apparent cause or explanation 
other than his gratuitous suggestion about zoning, the Court 
in effect summarily rejected the plans before it which had 
the imprimatur of the appellees upon them', expecially for the 
high and junior high schools. Against this background, it was 
clear error for the District Court to reject the workable 
HEW plans and to require new plans which may not work. The remarks 
of Justices Harlan and White are particularly helpful on the 
subject;

If Department recommendations are already available 
the school districts are to bear the burden of 
demonstrating beyond question, after a hearing, the 
unworkability of the proposals, and if such proposals 
are found unworkable, the Courts shall devise 
measures to provide the required relief.

Alexander v. Holmes, supra, 24 L.Ed. 2d 481. There is no
demonstration that the HEW recommendations here involved will
not work and no justification for suspension or denial of
relief required under Alexander.

Reversal is clearly required and this Court must,
we submit, require immediate implementation of the HEW plans,
with appropriate modifications while it retains jurisdiction.
If Forrest City wishes to modify or amend the HEW plans, such
modifications must be granted or made by this Court rather than
by the District Court.

CONCLUSION
For the foregoing reasons the judgment of the District 

Court should be reversed.
Respectfully submitted,
JACK GREENBERGJAMES M. NABRIT, III
NORMAN CHACHKINSuite 2030
10 Columbus Circle
New York, New York 10019



JOHN W. WALKERPHILIP E o KAPLAN
WALTER, ROTENBERRY, KAPLAN,

LAVEY & HOLLINGSWORTH 1820 West 13th Street 
Little Rock, Arkansas 72202

ATTORNEYS FOR APPELLANTS

BY. Philip E.KapSan
_,-WV

Philip E. Kapian

CERTIFICATE OF SERVICE

I hereby certify that I have this 5th day of March,
1970, served a copy of the above and foregoing Brief upon the 
attorneys for appellees, Attention: Mr. E. J. Butler, Attorney,
P. 0. Box 830, Forrest City, Arkansas 72335, and Mr. Harold 
Sharpe, P. 0. Box 924, Forrest City, Arkansas 72335, by 
depositing same in the United States mail, postage prepaid, 
addressed to them as herein.

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